[Federal Register Volume 77, Number 65 (Wednesday, April 4, 2012)]
[Notices]
[Pages 20361-20367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8105]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA865


Takes of Marine Mammals Incidental to Specified Activities; Pier 
36/Brannan Street Wharf Project in the San Francisco Bay, CA

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
implementing regulations, notification is hereby given that NMFS has 
issued an Incidental Harassment Authorization (IHA) to the Port of San 
Francisco (Port), allowing the take of small numbers of marine mammals, 
by Level B harassment only, incidental to pile driving during 
construction of the Brannan Street Wharf.

DATES: Effective May 1, 2012, through April 30, 2013.

ADDRESSES: A copy of the IHA, the application, and the Environmental 
Assessment are available by writing to Tammy C. Adams, Acting Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910 or by telephoning the contact listed here (see FOR 
FURTHER INFORMATION CONTACT), or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Documents 
cited in this notice may be viewed, by appointment, during regular 
business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Michelle Magliocca, Office of 
Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by United States citizens who engage in a specified activity 
(other than commercial fishing) within a specific geographical region 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
authorization is published in the Federal Register and provided to the 
public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' as ``* * * an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) further established a 45-day time limit for NMFS' 
review of an application, followed by a 30-day public notice and 
comment period on any proposed authorizations for the incidental 
harassment of marine mammals. Within 45 days of the close of the 
comment period, NMFS must either issue or deny the authorization.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment].

Summary of Request

    On May 6, 2011, NMFS received an application from the USACE, on 
behalf of the Port, requesting an IHA for the take, by Level B 
harassment, of small numbers of Pacific harbor seals (Phoca vitulina), 
California sea lions (Zalophus californianus), gray whales 
(Eschrichtius robustus), and Pacific harbor porpoises (Phocoena 
phocoena) incidental to pile driving activities during construction of 
the Brannan Street Wharf in San Francisco, California. In accordance 
with the MMPA and implementing regulations, NMFS issued a notice in the 
Federal Register on October 26, 2011 (76 FR 66274), requesting comments 
from the public on the proposed IHA.

Description of the Specified Activity

    A complete description of the specified activity may be found in 
NMFS' proposed IHA notice in the Federal Register (76 FR 66274, October 
26, 2011) and a summary is provided here. The project will involve 
construction of a pile-supported park that will be known as the 
``Brannan Street Wharf'' and will replace the existing Pier 36 and 
provide recreational space for the public. The project will require 
installation of 261 steel and concrete piles and 57,000 square feet 
(ft\2\) of new decking. Installation of the 261 steel and concrete 
piles will require in-water pile driving that could produce high-
intensity sound and has the potential to harass marine mammals. A 
breakdown of pile size and type is shown in Table 1.

[[Page 20362]]



                            Table 1--Summary of Pile Types And Pile Driving Activity.
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                                                                                                   Max piles per
                   Pile type                      Total piles              Pile driver                  day
----------------------------------------------------------------------------------------------------------------
24-inch octagonal concrete....................             141  Impact..........................               8
24-inch steel shell...........................             116  Vibratory and impact............               5
36-inch steel shell...........................               4  Vibratory and impact............               4
----------------------------------------------------------------------------------------------------------------

    All piles will be driven to a depth of 60 ft below the mudline 
elevation. Only one pile type is expected to be installed on any given 
day. Conservatively assuming the maximum vibratory time and number of 
impact blows required for each pile, a total of 988 minutes of 
vibratory driving and 150,000 impact blows will be necessary over the 
12-month duration of the project. All vibratory pile driving will use a 
standard frequency hammer similar to an APE 150, which produces up to 
1,800 vibrations per minute. All impact pile driving will use a DelMag 
D46-32 diesel impact hammer, which produces about 122,000 foot-pounds 
maximum energy blow at 1.5 seconds per blow on average. A bubble 
curtain will be used as a sound attenuation device during impact pile 
driving for the 24-in and 36-in steel shell piles.

Region of Activity

    The activity will occur in the San Francisco Bay at Pier 36, four 
blocks south of the San Francisco Oakland Bay Bridge. More 
specifically, this area is located between Pier 30-32 and Pier 38, 
directly adjacent to the east side of the Embarcadero and within the 
South of Market district of San Francisco. San Francisco Bay and the 
adjacent Sacramento-San Joaquin Delta make up one of the largest 
estuarine systems on the continent. The Bay has undergone extensive 
industrialization, but remains an important environment for healthy 
marine mammal populations year round. The area surrounding the activity 
is an intertidal landscape with heavy industrial use and boat traffic.

Dates of Activity

    Wharf and pier demolition--which is not expected to harass marine 
mammals--may begin in January 2012 and last for five months. The new 
wharf construction, including pile driving, is scheduled to begin in 
May 2012 and end 13 months later; however, pile driving is expected to 
be complete by December 2012.

Sound Propagation

    For background, sound is a mechanical disturbance consisting of 
minute vibrations that travel through a medium, such as air or water, 
and is generally characterized by several variables. Frequency 
describes the sound's pitch and is measured in hertz (Hz) or kilohertz 
(kHz), while sound level describes the sound's loudness and is measured 
in decibels (dB). Sound level increases or decreases exponentially with 
each dB of change. For example, 10 dB yields a sound level 10 times 
more intense than 1 dB, while a 20 dB level equates to 100 times more 
intense, and a 30 dB level is 1,000 times more intense. Sound levels 
are compared to a reference sound pressure (micro-Pascal) to identify 
the medium. For air and water, these reference pressures are ``re: 20 
[mu]Pa'' and ``re: 1 [mu]Pa,'' respectively. Root mean square (RMS) is 
the quadratic mean sound pressure over the duration of an impulse. RMS 
is calculated by squaring all of the sound amplitudes, averaging the 
squares, and then taking the square root of the average (Urick, 1975). 
RMS accounts for both positive and negative values; squaring the 
pressures makes all values positive so that they may be accounted for 
in the summation of pressure levels (Hastings and Popper, 2005). This 
measurement is often used in the context of discussing behavioral 
effects, in part because behavioral effects, which often result from 
auditory cues, may be better expressed through averaged units rather 
than by peak pressures.
    A review of numerous pile driving projects with comparable water 
depth and substrate conditions was conducted to identify source sound 
level data and estimate potential sound levels for pile driving 
activities around Pier 36. In their calculations, the Port 
conservatively assumed that the use of a bubble curtain for steel shell 
piles will reduce sound levels by 5 dB RMS. A conservative attenuation 
factor of 16 dB RMS (about 5 dB RMS per doubling of distance) was also 
assumed in the Port's analysis; sound attenuation would likely be 
greater than 16 dB RMS for such shallow water pile driving (CalTrans, 
2009). Pile driving at Pier 36 is expected to occur in water depths of 
zero to 15 feet. Maximum sound pressure levels for pile driving 
activities are shown in Table 2.

    Table 2--Measured Unattenuated Sound Pressure Levels in the Near Field (10 m) During Pile Driving in San
                                                  Francisco Bay
                                                [Caltrans, 2009]
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                                                                                               Sound level
              Pile type                  Attenuation device      Sound level  (impact)         (vibratory)
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24-in octagonal concrete............  None....................  170 dB.................  n/a
24-in steel shell...................  Bubble curtain..........  190 dB.................  165 dB
36-in steel shell...................  Bubble curtain..........  190 dB.................  175 dB
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Comments and Responses

    A notice of receipt and request for public comment on the 
application and proposed authorization was published on October 26, 
2011 (76 FR 66274). During the 30-day public comment period, the Marine 
Mammal Commission (Commission) provided the only comments.
    Comment 1: The Commission recommends that NMFS require the Port to 
monitor the presence and behavior of marine mammals during all 
vibratory and impact pile driving activities.
    Response: As stated in the proposed IHA, marine mammal monitoring 
will occur 30 minutes before, during, and 30 minutes after all impact 
pile driving activities. In addition, at least two NMFS-approved 
protected species observers will conduct behavioral

[[Page 20363]]

monitoring out to 1,900 m during all vibratory pile driving for the 
first two weeks of activity to validate take estimates and evaluate the 
behavioral impacts pile driving has on marine mammals out to the Level 
B harassment isopleth. NMFS believes this is an adequate effort of 
monitoring because sounds from vibratory pile driving will not exceed 
the Level A harassment threshold and sounds from impact pile driving 
only exceed the Level A harassment threshold 42 m from the source.
    Comment 2: The Commission recommends that NMFS require the Port to 
monitor before, during, and after all soft-starts of vibratory and 
impact pile driving activities to gather the data needed to determine 
the effectiveness of this technique as a mitigation measure.
    Response: NMFS disagrees that the Port needs to monitor for marine 
mammals before, during, and after all soft-starts. Protected species 
observers will be on-site and monitoring for marine mammals at least 30 
minutes prior to, during, and after all impact driving (including 
during soft-starts) and at least two full days per week during all 
vibratory pile driving. NMFS believes that monitoring for all impact 
driving and at least two days per week of vibratory pile driving days 
per week will allow for adequate interpretation of how marine mammals 
are behaving in response to pile driving, including during soft-starts.
    Comment 3: The Commission recommends that NMFS require the Port to 
implement soft-start procedures after 15 minutes for pinnipeds and 30 
minutes for cetaceans, if pile driving was delayed or shut down due to 
the presence of a marine mammal within or approaching the Level A 
harassment zone.
    Response: NMFS agrees with the Commission's recommendation and the 
Port will implement soft-start procedures after 15 minutes if pile 
driving is delayed or shut down due to the presence of a pinniped 
within or approaching the Level A harassment zone.

Description of Marine Mammals in the Area of the Specified Activity

    Marine mammals with confirmed occurrences in San Francisco Bay are 
the Pacific harbor seal, California sea lion, gray whale, harbor 
porpoise, humpback whale (Megaptera noveangliae), and sea otter 
(Enhydra lutris). However, humpback whales are considered extremely 
rare in San Francisco Bay and are highly unlikely to be present in the 
project vicinity during pile driving. Sea otters are managed by the 
United States Fish and Wildlife Service. Therefore, these two species 
are not discussed further. Information on the Pacific harbor seal, 
California sea lion, gray whale, and harbor porpoise was provided in 
the October 26, 2011 Federal Register notice (76 FR 66274).

Potential Effects on Marine Mammals

    The action consists of both in-water and above-water components, 
but the only activity with the potential to take marine mammals is pile 
driving. A detailed description of potential impacts to marine mammals 
can be found in NMFS' October 26, 2011 Federal Register notice (76 FR 
66274) and is summarized here.
    Marine mammals are continually exposed to many sources of sound. 
For example, lightning, rain, sub-sea earthquakes, and animals are 
natural sound sources throughout the marine environment. Marine mammals 
produce sounds in various contexts and use sound for various biological 
functions including, but not limited to, (1) social interactions; (2) 
foraging; (3) orientation; and (4) predator detection. Interference 
with producing or receiving these sounds may result in adverse impacts. 
Audible distance or received levels will depend on the sound source, 
ambient noise, and the sensitivity of the receptor (Richardson et al., 
1995). Marine mammal reactions to sound may depend on sound frequency, 
ambient sound, what the animal is doing, and the animal's distance from 
the sound source (Southall et al., 2007).

Hearing Impairment

    Marine mammals may experience temporary or permanent hearing 
impairment when exposed to loud sounds. Hearing impairment is 
classified by temporary threshold shift (TTS) and permanent threshold 
shift (PTS). There are no empirical data for when PTS first occurs in 
marine mammals; therefore, it must be estimated from when TTS first 
occurs and from the rate of TTS growth with increasing exposure levels. 
PTS is likely if the animal's hearing threshold is reduced by >= 40 dB 
of TTS. PTS is considered auditory injury (Southall et al., 2007) and 
occurs in a specific frequency range and amount. Due to required 
mitigation measures and source levels in the proposed project area, 
NMFS does not expect marine mammals to be exposed to PTS levels.

Temporary Threshold Shift (TTS)

    TTS is the mildest form of hearing impairment that can occur during 
exposure to a loud sound (Kryter, 1985). While experiencing TTS, the 
hearing threshold rises and a sound must be louder in order to be 
heard. TTS can last from minutes or hours to days, occurs in specific 
frequency ranges (i.e., an animal might only have a temporary loss of 
hearing sensitivity between the frequencies of 1 and 10 kHz), and can 
occur to varying degrees (e.g., an animal's hearing sensitivity might 
be reduced by 6 dB or by 30 dB). For sound exposures at or somewhat 
above the TTS-onset threshold, hearing sensitivity recovers rapidly 
after exposure to the sound ends. Few data on sound levels and 
durations necessary to elicit mild TTS have been obtained for marine 
mammals. Southall et al. (2007) considers a 6 dB TTS (i.e., baseline 
thresholds are elevated by 6 dB) sufficient to be recognized as an 
unequivocal deviation and thus a sufficient definition of TTS-onset. 
Because it is non-injurious, NMFS considers TTS as Level B harassment 
that is mediated by physiological effects on the auditory system; 
however, NMFS does not consider onset TTS to be the lowest level at 
which Level B harassment may occur.
    Southall et al. (2007) summarizes underwater pinniped data from 
Kastak et al. (2005), indicating that a tested harbor seal showed a TTS 
of around 6 dB when exposed to a non-pulse noise at SPL 152 dB re: 1 
[micro]Pa for 25 minutes. In contrast, a tested sea lion exhibited TTS-
onset at 174 dB re: 1 [micro]Pa under the same conditions as the harbor 
seal. Data from a single study on underwater pulses found no signs of 
TTS-onset in sea lions at exposures up to 183 dB re: 1 [micro]Pa (peak-
to-peak) (Finneran et al., 2003). There is no information on species-
specific TTS for harbor porpoises or gray whales.

Behavioral Effects

    There are limited data available on the behavioral effects of non-
pulse noise (for example, vibratory pile driving) on pinnipeds while 
underwater; however, field and captive studies to date collectively 
suggest that pinnipeds do not react strongly to exposures between 90 
and 140 dB re: 1 microPa; no data exist from exposures at higher 
levels. Jacobs and Terhune (2002) observed wild harbor seal reactions 
to high-frequency acoustic harassment devices around nine sites. Seals 
came within 44 m of the active acoustic harassment devices and failed 
to demonstrate any behavioral response when received SPLs were 
estimated at 120-130 dB. In a captive study (Kastelein, 2006), 
scientists subjected a group of seals to non-pulse sounds between 8 and 
16 kHz. Exposures between 80 and 107 dB did not induce strong 
behavioral

[[Page 20364]]

responses; however, a single observation from 100 to 110 dB indicated 
an avoidance response. The seals returned to baseline conditions 
shortly following exposure. Southall et al. (2007) notes contextual 
differences between these two studies; the captive animals were not 
reinforced with food for remaining in the noise fields, whereas free-
ranging animals may have been more tolerant of exposures because of 
motivation to return to a safe location or approach enclosures holding 
prey items. Vibratory and impact pile driving may result in anticipated 
hydroacoustic levels between 165 and 190 dB root mean square. Southall 
et al. (2007) reviewed relevant data from studies involving pinnipeds 
exposed to pulse sounds and concluded that exposures to 150 to 180 dB 
generally have limited potential to induce avoidance behavior.
    No known data exist for sound levels resulting from the type of 
vibratory hammer and pile sizes that will be used at the proposed 
project site; however, measured sound levels for the ``King Kong'' 
vibratory hammer used in Richmond, California ranged between 163 and 
180 dB RMS (Illingworth and Rodkin, 2007). Sound levels at the proposed 
project site are expected to be lower because the vibratory hammer 
being used has an expected sound level of 165 dB for 24-in piles and 
175 dB for 36-in piles. In addition, San Francisco Bay is highly 
industrialized and masking of the pile driver by other vessels and 
anthropogenic noise within the action area may, especially in the 
nearby shipping channel, make construction sounds difficult to hear at 
greater distances. Underwater ambient noise levels along the San 
Francisco waterfront may be around 133 dB RMS, based on measurements 
from the nearby Oakland Outer Harbor (Caltrans, 2009). Seals will 
likely also exhibit tolerance or habituation (Richardson et al., 1999) 
due to the amount of anthropogenic noise within the proposed project 
area and San Francisco Bay as a whole.
    No impacts to marine mammal reproduction are anticipated because 
there are no known pinniped haul-outs or rookeries within the proposed 
project area and San Francisco Bay is not a known breeding ground for 
cetaceans. Marine mammals may avoid the area around the hammer, thereby 
reducing their exposure to elevated sound levels. NMFS expects any 
impacts to marine mammal behavior to be temporary, Level B harassment 
(for example, avoidance or alteration of behavior).

Anticipated Effects on Habitat

    No permanent detrimental impacts to marine mammal habitat are 
expected to result from the proposed project. Pile driving (resulting 
in temporary ensonification) may impact prey species and marine mammals 
by resulting in avoidance or abandonment of the area; however these 
impacts are expected to be local and temporary. Site conditions are 
expected to be improved or substantively unchanged from existing 
conditions. The proposed project will result in the net removal of 
approximately 3,550 ft\2\ of pile fill and clearing of 47,000 ft\2\ of 
timber debris that has collapsed at the end of Pier 36. This debris 
includes 350-400 creosote-treated wood pilings. Creosote can leach out 
of the wood over time, potentially causing long-term impacts to marine 
species. The proposed project will also result in a net reduction of 
47,000 ft\2\ of shadow fill (shading over the water). This increase of 
unshaded water is expected to be beneficial to benthic invertebrates, 
fish, and marine mammals through restoration of ambient light 
conditions and increased biological productivity. Overall, the proposed 
activity is not expected to cause significant or long-term adverse 
impacts on marine mammal habitat.

Mitigation Measures

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable adverse 
impact on such species or stock and its habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stock for 
taking for certain subsistence uses. There are no relevant subsistence 
uses of marine mammals implicated by this action.

Sound Attenuation Device

    When using impact pile driving to install steel piles in water 
depths greater than two feet, an unconfined bubble curtain will be used 
to reduce hydroacoustic sound levels to avoid the potential for injury. 
The bubble curtain is expected to reduce sound levels by at least 5 dB.

Establishment of an Exclusion Zone

    During all in-water impact pile driving, the Port will establish a 
preliminary marine mammal exclusion zone with 50 m (164 ft) radius 
around each pile to avoid exposure to sounds at or above 180 dB. This 
includes an 8-m (26-ft) buffer zone to further avoid marine mammals 
from entering the 180 dB isopleth. The exclusion zone will be monitored 
during all impact pile driving to ensure that no marine mammals enter 
the 50-m (164-ft) radius. The purpose of this area is to prevent Level 
A harassment (injury) of any marine mammal species. Once underwater 
sound measurements are taken, the exclusion zone may be adjusted 
accordingly so that marine mammals are not exposed to Level A 
harassment sound pressure levels. An exclusion zone for vibratory pile 
driving or installation of concrete piles is unnecessary as source 
levels will not exceed the Level A harassment threshold.

Pile Driving Shut Down and Delay Procedures

    If a protected species observer sees a marine mammal within or 
approaching the exclusion zone prior to start of impact pile driving, 
the observer will notify the on-site resident engineer (or other 
authorized individual) who will then be required to delay pile driving 
until the marine mammal has moved outside of the exclusion zone or if 
the animal has not been resighted within 15 minutes for pinnipeds or 30 
minutes for cetaceans. If a marine mammal is sighted within or on a 
path toward the exclusion zone during pile driving, pile driving should 
cease until that animal has cleared and is on a path away from the 
exclusion zone or 15/30 minutes (pinnipeds/cetaceans) has lapsed since 
the last sighting.

Soft-Start Procedures

    A ``soft-start'' technique will be used at the beginning of each 
pile installation to allow any marine mammal that may be in the 
immediate area to leave before the pile hammer reaches full energy. For 
vibratory pile driving, the soft-start procedure requires contractors 
to initiate noise from the vibratory hammer for 15 seconds at 40-60 
percent reduced energy followed by a 1-minute waiting period. The 
procedure will be repeated two additional times before full energy may 
be achieved. For impact hammering, contractors will provide an initial 
set of three strikes from the impact hammer at 40 percent energy, 
followed by a 1-minute waiting period, then two subsequent three-strike 
sets. Soft-start procedures will be conducted prior to driving each 
pile if hammering ceases for more than 30 minutes.

Monitoring for Herring

    Monitoring for herring spawning events will be conducted on a daily 
basis between December 1 and February (although pile driving is 
expected to be complete in December). If a herring spawning event is 
observed, in-water work will cease for a period of two weeks following 
the spawning event (a

[[Page 20365]]

measure designed to reduce impacts to fish). Pinniped presence can be 
sporadic and unpredictable during herring runs in San Francisco Bay; 
therefore, this mitigation measure will minimize impacts to marine 
mammals.
    NMFS has carefully evaluated the above mitigation measures and 
considered a range of other measures in the context of ensuring that 
NMFS prescribes the means of effecting the least practicable adverse 
impact on the affected marine mammal species and stocks and their 
habitat. Our evaluation of potential measures included consideration of 
the following factors in relation to one another: (1) The manner in 
which, and the degree to which, the successful implementation of the 
measure is expected to minimize adverse impacts to marine mammals; (2) 
the proven or likely efficacy of the specific measure to minimize 
adverse impacts as planned; and (3) the practicability of the measure 
for applicant implementation, including consideration of personnel 
safety, and practicality of implementation.
    Based on our evaluation of the applicant's proposed measures and 
the Commission's comments, NMFS has determined that the above 
mitigation measures provide the means of effecting the least 
practicable adverse impacts on marine mammals species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present.
    Hydroacoustic monitoring will be performed at the initial 
installation of each pile type (24-in concrete, 24-in steel, and 36-in 
steel) to ensure that the harassment isopleths are not extending past 
the calculated distances described in this notice. The Port must 
designate at least one biologically-trained, on-site individual, 
approved in advance by NMFS, to monitor the Level B harassment zone 
area for marine mammals 30 minutes before, during, and 30 minutes after 
all impact pile driving activities and call for shut down if any marine 
mammal is observed within or approaching the designated exclusion zone 
(preliminarily set at 50 m [164 ft]). In addition, at least two NMFS-
approved protected species observers will conduct behavioral monitoring 
out to 1,900 m during all vibratory pile driving for the first two 
weeks of activity to validate take estimates and evaluate the 
behavioral impacts piles driving has on marine mammals out to the Level 
B harassment isopleth. If there are no observations of marine mammals 
within the Level B harassment isopleth during this time, behavioral 
monitoring may be reduced to a level agreed upon by the applicant and 
NMFS. Note that for impact hammering, the initial Level B (160 dB) 
harassment isopleths are 42 m (138 ft) for the concrete piles and 750 m 
(2,460 ft) for the steel piles. For vibratory hammering, the initial 
estimated distance is 1,900 m (6,233 ft). If light condition is low 
(such as early morning or late afternoon), protected species observers 
will use infrared scopes to conduct their observations.
    Protected species observers will be provided with the equipment 
necessary to effectively monitor for marine mammals (for example, high-
quality binoculars, spotting scopes, compass, and range-finder) in 
order to determine if animals have entered into the exclusion zone or 
Level B harassment isopleth and to record species, behaviors, and 
responses to pile driving. If hydroacoustic monitoring indicates that 
threshold isopleths are greater than originally calculated, the Port 
will contact NMFS within 48 hours and make the necessary adjustments. 
Likewise, if threshold isopleths are actually less than originally 
calculated, adjustments may be made. Protected species observers will 
be required to submit a report to NMFS within 90 days of completion of 
pile driving. The report will include data from marine mammal sightings 
(such as species, group size, and behavior), any observed reactions to 
construction, distance to operating pile hammer, and construction 
activities occurring at time of sighting.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA, 
such as an injury (Level A harassment), serious injury, or mortality 
(e.g., ship-strike, gear interaction, and/or entanglement), CWA shall 
immediately cease the specified activities and report the incident to 
the Acting Chief of the Permits and Conservation Division, Office of 
Protected Resources, NMFS, at 301-427-8401 and/or by email to 
[email protected] and [email protected] and the 
Southwest Regional Stranding Coordinator at 562-980-3230 
([email protected]). The report must include the following 
information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved;
     Vessel's speed during and leading up to the incident;
     Description of the incident;
     Status of all sound source use in the 24 hours preceding 
the incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities will not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with CWA to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. CWA may not resume their 
activities until notified by NMFS via letter, email, or telephone.
    In the event that CWA discovers an injured or dead marine mammal, 
and the lead PSO determines that the cause of the injury or death is 
unknown and the death is relatively recent (i.e., in less than a 
moderate state of decomposition as described in the next paragraph), 
CWA will immediately report the incident to the Acting Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
at 301-427-8401 and/or by email to [email protected] and 
[email protected] and the Southwest Regional Stranding 
Coordinator at 562-980-3230 ([email protected]). The report must 
include the same information identified in the paragraph above. 
Activities may continue while NMFS reviews the circumstances of the 
incident. NMFS will work with CWA to determine whether modifications in 
the activities are appropriate.
    In the event that CWA discovers an injured or dead marine mammal, 
and the lead PSO determines that the injury or death is not associated 
with or related to the activities authorized in the IHA (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), CWA will report the incident to 
the Acting Chief of the Permits and Conservation Division, Office of

[[Page 20366]]

Protected Resources, NMFS, at 301-427-8401 and/or by email to 
[email protected] and [email protected] and the 
Southwest Regional Stranding Coordinator at 562-980-3230 
([email protected]), within 24 hours of the discovery. CWA will 
provide photographs or video footage (if available) or other 
documentation of the stranded animal sighting to NMFS.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment].
    Based on the application and subsequent analysis, the impact of the 
described pile driving operations (including mitigation and monitoring) 
may result in, at most, short-term modification of behavior by small 
numbers of marine mammals within the action area. Marine mammals may 
avoid the area or temporarily alter their behavior at time of exposure.
    Current NMFS practice regarding exposure of marine mammals to 
anthropogenic noise is that in order to avoid the potential for injury 
(PTS), cetaceans and pinnipeds should not be exposed to impulsive 
sounds of 180 and 190 dB or above, respectively. This level is 
considered precautionary as it is likely that more intense sounds would 
be required before injury would actually occur (Southall et al., 2007). 
Potential for behavioral harassment (Level B) is considered to have 
occurred when marine mammals are exposed to sounds at or above 160 dB 
for impulse sounds (such as impact pile driving) and 120 dB for non-
pulse noise (such as vibratory pile driving). These levels are also 
considered precautionary.
    Distances to NMFS' harassment thresholds were calculated based on 
the sound levels at each source and the expected attenuation rate of 
sound (Table 3). Two sets of threshold distances were identified: one 
for concrete piles and one for steel piles. The threshold distances 
listed for the steel piles are those expected from the 36-in steel pile 
driving activities, as they will also encompass the isopleths for the 
24-in steel piles. The 42-m (268-ft) distance to the Level A harassment 
threshold provides protected species observers plenty of time and 
adequate visibility to prevent marine mammals from entering the area 
during impact pile driving. This will prevent marine mammals from being 
exposed to sound levels that reach the Level A harassment threshold. 
In-air sound from pile driving also has the potential to affect marine 
mammals. However, in-air sound is not a concern here because there are 
no pinniped haul-outs near the project area.

     Table 3--Calculated Underwater Distances to NMFS' Marine Mammal
                       Harassment Threshold Levels
------------------------------------------------------------------------
                                    Distance from        Distance from
           Threshold                source (24-in        source (36-in
                                   concrete piles)       steel piles)
------------------------------------------------------------------------
120 dB RMS (Level B--            n/a................  1,900 m (6,233 ft)
 continuous).
160 dB RMS (Level B--impulse)..  42 m (138 ft)......  750 m (2,460 ft)
180/190 dB RMS (Level A).......  n/a................  42 m (138 ft)
------------------------------------------------------------------------

    The estimated number of marine mammals potentially taken is based 
on marine mammal monitoring reports prepared by the California 
Department of Transportation during similar activities in San Francisco 
Bay and on discussions with the NMFS Southwest Regional Office. The 
California Department of Transportation's San Francisco-Oakland Bay 
Bridge marine mammal monitoring reports were used to estimate the 
number of pinnipeds near the Pier 36/Brannan Street Wharf area as both 
sites are relatively close in distance and are similar in bathymetric 
features. However, monitoring conducted for the San Francisco-Oakland 
Bay Bridge project was in close proximity to a haul-out area, while the 
Pier 36/Brannan Street Wharf location is in an area of high commercial 
boat activity and no adjacent haul-outs. Therefore, the Caltrans data 
likely overestimate marine mammal abundance for the Pier 36/Brannan 
Street Wharf location. Based on consultation with the NMFS Southwest 
Regional Office, review of the monitoring reports described above, and 
the estimated number of pile driving days, the Port requested 
authorization for the incidental take of 138 harbor seals (an average 
of 2 per day), 69 California sea lions (an average of 1 per day), 69 
harbor porpoises (an average of 1 per day), and 2 gray whales (2 
annually). Based on further consultation with the NMFS Southwest 
Regional Office and previous authorizations in this region, and 
included in the Federal Register notice of proposed IHA (76 FR 66274, 
October 26, 2011), NMFS is authorizing the take of five gray whales 
annually, rather than two. These numbers indicate the maximum number of 
animals expected to occur within the largest Level B harassment 
isopleth (1,900 m).

Negligible Impact and Small Numbers Analysis and Determination

    NMFS has defined ``negligible impact'' as ``* * * an impact 
resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.'' In making a negligible impact determination, NMFS considers 
a number of factors which include, but are not limited to, number of 
anticipated injuries or mortalities (none of which are authorized 
here), number, nature, intensity, and duration of Level B harassment, 
and the context in which takes occur.
    As described above, marine mammals will not be exposed to 
activities or sound levels which will result in injury (PTS), serious 
injury, or mortality. Pile driving will occur in shallow coastal waters 
of San Francisco Bay. The closest pinniped haul-out is 3.2 km (2 mi) 
away, which is well outside the project area's largest harassment zone. 
Marine mammals approaching the action area will likely be traveling or 
opportunistically foraging. The amount of take authorized is considered 
small (less than one percent each) relative to the estimated 
populations of 34,233 Pacific harbor seals, 238,000 California sea 
lions, 9,189 harbor porpoises, and 18,813 gray whales. Marine mammals 
may be temporarily impacted by pile driving noise. However, marine 
mammals are expected to avoid the area, thereby reducing exposure and 
impacts. Pile driving activities are expected to

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occur for approximately 69 days. Furthermore, San Francisco Bay is a 
highly industrialized area, so animals are likely tolerant or 
habituated to anthropogenic disturbance, including low level vibratory 
pile driving operations, and noise from other anthropogenic sources 
(such as vessels) may mask construction related sounds. There is no 
anticipated effect on annual rates of recruitment or survival of 
affected marine mammals.
    Based on the analysis contained in this notice, the proposed IHA 
notice (76 FR 66274, October 26, 2011), and the IHA application, and 
taking into consideration the implementation of the mitigation and 
monitoring measures, NMFS has determined that the Port's proposed pile 
driving activities will result in the incidental take of small numbers 
of marine mammals, by Level B harassment only, and that the total 
taking from will have a negligible impact on the affected species or 
stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action.

Endangered Species Act (ESA)

    No marine mammal species listed under the ESA are anticipated to 
occur within the action area. Therefore, section 7 consultation under 
the ESA is not required.

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), and 
NOAA Administrative Order 216-6, NMFS prepared an Environmental 
Assessment (EA) to consider the direct, indirect, and cumulative 
effects to marine mammals and other applicable environmental resources 
resulting from issuance of a one-year IHA and the potential issuance of 
future authorizations for incidental harassment for the ongoing 
project. NMFS made a finding of no significant impact (FONSI) and the 
EA and FONSI are available on the NMFS Web site listed in the beginning 
of this document (see ADDRESSES).

    Dated: March 29, 2012.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2012-8105 Filed 4-3-12; 8:45 am]
BILLING CODE 3510-22-P